State v. Kreis

659

Argued and submitted June 6; decision of Court of Appeals reversed, judgment

of Beaverton Municipal Court reversed, and case remanded to that court for

further proceedings consistent with this opinion November 7, 2019

STATE OF OREGON,

Respondent on Review,

v.

ERIC LAWRENCE KREIS,

Petitioner on Review.

(M-808542-2) (CA A157224) (SC S066329)

451 P3d 954

Defendant, who was charged with interfering with a peace officer for refusing

to obey a “lawful order” under ORS 162.247(1)(b), moved for a judgment of acquit-

tal, arguing that the officer’s order, which directed defendant to turn around so

that he could be handcuffed, was not a “lawful order” because it was issued in

violation of Article I, section 9, of the Oregon Constitution. The trial court denied

defendant’s motion, a jury convicted defendant of interfering with a peace officer,

and the Court of Appeals affirmed. Held: An order that effects a seizure is not

a “lawful order” for purposes of ORS 162.247(1)(b) if it is issued in violation of

Article I, section 9, and in this case, the officer’s order was issued in violation of

Article I, section 9, because the officer lacked reasonable suspicion that defen-

dant was committing or about to commit a crime, and the officer’s safety concerns

did not provide an independent constitutional justification for the order.

The decision of the Court of Appeals is reversed. The judgment of the

Beaverton Municipal Court is reversed, and the case is remanded to that court

for further proceedings consistent with this opinion.

En Banc

On review from the Court of Appeals.*

Marc D. Brown, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

briefs for petitioner on review. Also on the briefs was Ernest

G. Lannet, Chief Defender.

Christopher A. Perdue, Assistant Attorney General,

Salem, argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

______________

* On appeal from Beaverton Municipal Court, Les Rink, Judge. 294 Or App

554, 432 P3d 245 (2018).

660 State v. Kreis

WALTERS, C. J.

The decision of the Court of Appeals is reversed. The

judgment of the Beaverton Municipal Court is reversed, and

the case is remanded to that court for further proceedings

consistent with this opinion.

Balmer, J., dissented and filed an opinion, in which

Garrett, J., joined.

Cite as 365 Or 659 (2019) 661

WALTERS, C. J.

In this criminal case, an officer seized defendant

without a constitutional basis for doing so, and, to effectuate

that unconstitutional stop, ordered him to turn and be hand-

cuffed. Defendant refused and was convicted, under ORS

162.247(1)(b), of interfering with a peace officer for refusing

to obey a “lawful order.” For the reasons that follow, we con-

clude that the officer’s order was not a “lawful order” as that

term is used in ORS 162.247(1)(b) and reverse defendant’s

conviction.

I. BACKGROUND

Because defendant was convicted of the offense of

interfering with a peace officer, we state the facts that gave

rise to that charge in the light most favorable to the state.

See State v. Lupoli, 348 Or 346, 366, 234 P3d 117 (2010) (stat-

ing standard). Two officers, Crino and Mendez, were in their

patrol car when they saw defendant in a restaurant park-

ing lot around midnight. The restaurant had been closed for

about 20 minutes, and the parking lot, which provided park-

ing for the restaurant and a nearby golf course, had recently

been the site of several thefts. Defendant was standing

“near” one of the approximately five cars in the lot, and the

officers suspected that defendant might be trying to break

into that car or might be attempting to commit DUII. To

investigate, Crino ran the car’s license plate and noted that

defendant matched the description of the car’s registered

owner. However, believing that the descriptions of registered

owners are not always accurate, Crino remained unsure

whether defendant owned the car. While Crino was running

the car’s plates, Mendez, an officer-in-training, approached

defendant and initiated a conversation. Defendant did not

provide any information in response to Mendez’s questions;

instead, he left the parking lot and walked toward a paved

pathway leading to the back of the restaurant.

Crino and Mendez followed defendant and caught

up with him as he stood on the restaurant’s back patio near

the restaurant’s back door. Crino asked defendant for his

name, whether the car that he had been standing near was

his, and whether he was a restaurant employee. Defendant

662 State v. Kreis

did not respond, and when he took a few steps away from the

officers, Crino informed him that he was not free to leave

until the investigation was complete. Defendant responded

that he did not “have to talk to” Crino and that he “was

not answering any of [his] questions.” To Crino, defen-

dant appeared angry and exhibited signs of intoxication.

Considering Mendez’s lack of experience, Crino called for

assistance.

When two additional officers arrived, Crino explained

to defendant that Crino needed to learn defendant’s iden-

tity, why he was at the restaurant, and whether he was a

restaurant employee. Defendant’s brow furrowed, he balled

his hands into fists, took a bladed stance, and began shift-

ing his weight back and forth. Crino noticed that defendant

was looking at him and the other officers, while also look-

ing beyond them as if he were looking for an escape route.

Crino told defendant that, if defendant did not provide the

requested information, he would be arrested. In response,

defendant stated through clenched teeth, “I am not going

to be arrested.” At that point, Crino explained to defendant

that he had concern for his safety and ordered defendant to

turn around, face the building, and put his hands behind

his back so that he could be handcuffed. Defendant refused.

Crino gave the order a second time, again explaining to

defendant that he was going to be handcuffed for safety

reasons. Defendant said, “No,” and refused to turn around.

Crino told defendant that he was under arrest “for inter-

fering.” Defendant physically resisted the officers’ attempts

to subdue him, and the officers took him to the ground and

handcuffed him.

The state charged defendant with interfering with

a peace officer under ORS 162.247(1)(b) and with resisting

arrest. The case went to trial before a jury. After the state

presented its case, defendant moved for judgment of acquit-

tal on the interfering charge. Defendant argued that Crino

did not have reasonable suspicion that defendant had com-

mitted, or was about to commit, a criminal offense, and con-

sequently, that neither his stop of defendant nor his order

that defendant turn around to be handcuffed were lawful.

The state responded with two arguments. First, it asserted

that Crino had reasonable suspicion that defendant had

Cite as 365 Or 659 (2019) 663

committed or was about to commit DUII, attempted DUII,

or theft. Second, and alternatively, the state asserted that,

even if Crino’s stop was not lawful, his order that defendant

turn and be handcuffed was justified by reasonable officer-

safety concerns. The trial court denied defendant’s motion.

The jury found defendant guilty on the interfering charge

and acquitted defendant on the resisting charge, and the

court entered judgment accordingly.1

Defendant appealed,2 assigning error to the trial

court’s denial of his motion for judgment of acquittal.

Defendant asserted that Crino had stopped him in viola-

tion of Article I, section 9, and that Crino’s subsequent order

that defendant turn and be handcuffed also was unlawful.

Defendant argued that, under this court’s decision in State

v. Bates, 304 Or 519, 524, 747 P2d 991 (1987), officer-safety

concerns can justify an otherwise unconstitutional search

or seizure only when effected during a “lawful encounter.”

The Court of Appeals disagreed, relying on its

prior cases involving ORS 162.217(1)(b) and holding that,

for purposes of that statute, the lawfulness of an encoun-

ter does not affect the lawfulness of a subsequent order.

State v. Kreis, 294 Or App 554, 559, 432 P3d 245 (2018).

The court acknowledged the tension between its cases and

Bates, which involved a motion to supress evidence and not a

conviction for interfering with a peace officer, but explained

that, as presented, the court was not in a position to resolve

that tension: Defendant had not argued that the Court of

Appeals cases involving the interfering statute were irrec-

oncilable with Bates or that the Court of Appeals must over-

rule those cases. Id. at 561-62. Applying its rule from those

cases, the court reasoned that the question before it was not

1

The court’s judgment also required that defendant pay attorney fees for

services provided in conjunction with both the interfering and resisting arrest

charges. Defendant assigned error to that ruling, and the Court of Appeals

affirmed. State v. Kreis, 294 Or App 554, 562-63, 432 P3d 245 (2018). We allowed

review of that issue, but, because we reverse defendant’s conviction, we do not

reach it.

2

Defendant appealed from a judgment entered by the Beaverton Municipal

Court. Under ORS 138.035(1), “[a] defendant may take an appeal from * * *

a municipal court * * * that has become a court of record * * * to the Court of

Appeals[.]”

664 State v. Kreis

the lawfulness of the initial stop but of the subsequent order,

and that, considered independently, orders issued to protect

officer safety were lawful orders. Because defendant did not

challenge the legitimacy of Crino’s officer-safety concerns,

the Court of Appeals affirmed the trial court’s denial of

defendant’s motion for judgment of acquittal. Id. Defendant

sought, and we allowed, review.

II. ANALYSIS

In this court, defendant contends, as he did below,

that the trial court erred in denying his motion for judgment

of acquittal because Crino’s order that he turn and be hand-

cuffed was not a “lawful order,” as that term is used in ORS

162.247(1)(b). That statute provides:

“(1) A person commits the crime of interfering with a

peace officer or parole and probation officer if the person,

knowing that another person is a peace officer or a parole

and probation officer * * *:

“* * * * *

“(b) Refuses to obey a lawful order by the peace officer

or parole and probation officer.”

The parties recognize that this court previously has inter-

preted the term “lawful order” and agree that the definition

we provided frames the issue before us: A “lawful order” is

an order that is “authorized by, and is not contrary to, sub-

stantive law.” See State v. Ausmus, 336 Or 493, 504, 85 P3d

864 (2003) (so defining “lawful order” in statute proscrib-

ing refusal “to comply with a lawful order of the police to

disperse”); see also State v. Illig-Renn, 341 Or 228, 238, 142

P3d 62 (2006) (reasoning that “lawful” in the interfering

statute does not include an order that is “inconsistent with

the substantive law”).

Drawing from that definition, defendant contends

that an order that effects a seizure is authorized by, and

not contrary to, substantive law only when issued in com-

pliance with Article I, section 9. According to defendant,

Crino did not have the reasonable suspicion constitutionally

necessary to stop him, and Crino’s officer-safety concerns

could not convert an otherwise unlawful order into a law-

ful one, because, according to defendant, the officer-safety

Cite as 365 Or 659 (2019) 665

doctrine applies only during a lawful police encounter. The

state responds that officers have broad authority to issue

orders and that their orders are contrary to substantive

law only when they direct a person to commit a crime or to

refrain from statutorily or constitutionally protected activ-

ity. According to the state, Crino’s stop was justified by rea-

sonable suspicion, and, even if it was not, Crino’s subsequent

order was lawful: Crino did not direct defendant to commit a

crime or to refrain from constitutionally protected activity.

Alternatively, the state argues that Crino’s order was inde-

pendently justified by his officer-safety concerns.

A. Crino’s initial stop was not justified by reasonable

suspicion.

As framed by the parties, the first question we must

answer is whether Crino’s initial stop was justified by rea-

sonable suspicion of criminal activity. An officer has rea-

sonable suspicion when the officer “can point to specific and

articulable facts that give rise to a reasonable inference that

the defendant committed or was about to commit a specific

crime or type of crime.” State v. Maciel-Figueroa, 361 Or

163, 165, 389 P3d 1121 (2017). The officer must have a sub-

jective belief that the person stopped has committed, or is

about to commit, a crime, and that belief must be objectively

reasonable under the totality of the circumstances. State v.

Belt, 325 Or 6, 11, 932 P2d 1177 (1977). An officer’s suspi-

cion must be particularized to the individual based on the

individual’s own conduct. State v. Miglavs, 337 Or 1, 12-13,

90 P3d 607 (2004). Reasonable suspicion requires less than

probable cause but more than mere speculation. See State v.

Holdorf, 355 Or 812, 822-23, 333 P3d 982 (2014) (articulat-

ing standard).

In this court, the state argues that Crino had rea-

sonable suspicion that defendant was committing criminal

trespass, or had committed or was about to commit DUII

or attempted DUII.3 Given that the state makes the former

argument for the first time in this court, we discuss only the

3

Below, the state also argued that Crino had reasonable suspicion that defen-

dant was committing or was about to commit theft. The state does not renew that

argument here, and we do not address it.

666 State v. Kreis

state’s latter argument.4 And, for the reasons that follow,

we conclude that the facts in the record are insufficient to

support a finding that Crino had an objectively reasonable

belief that defendant had committed or was about to commit

DUII or attempted DUII.5

A person “commits the offense of [DUII] if the per-

son drives a vehicle while the person: (a) [h]as a 0.08 percent

or more [BAC] * * *; [or] (b) is under the influence of intox-

icating liquor.” ORS 813.010(1). To constitute an attempt, a

person must “intentionally engage[ ] in conduct which con-

stitutes a substantial step toward commission of the crime.”

ORS 161.405(1). There is evidence in the record that when

Crino approached defendant, defendant exhibited signs of

intoxication, and defendant does not dispute that Crino had

a reasonable belief that defendant was intoxicated. Instead,

defendant argues that the record does not indicate that

defendant had taken a substantial step toward driving or

was about to drive a vehicle.

The state argues that Crino had reasonable suspi-

cion that defendant was about to drive or had taken a sub-

stantial step toward driving, relying on the fact that Crino

saw defendant standing “near” a car in the parking lot of

a closed restaurant after midnight. The state adds that

there was evidence that defendant matched the description

of the car’s owner, that the parking lot was located a dis-

tance away from the road, and that there were few places

within walking distance. Therefore, according to the state,

Crino reasonably could conclude, based on his training and

4

In the trial court, the state did not argue, in response to defendant’s motion

for judgment of acquittal, that Crino had reasonable suspicion that defendant

was committing or was about to commit criminal trespass. When certain condi-

tions are met, we can affirm a trial court’s decision on a basis not argued there.

See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20

P3d 180 (2001) (articulating conditions necessary for argument that trial court

was correct in its ruling, but for reason not advanced there). But, in this case, the

state does not contend that those conditions are met or develop that argument,

and we therefore decline to address it.

5

Neither party appears to argue that the evidence required to establish the

lawfulness of the stop varies depending on whether Crino believed defendant had

or was about to commit DUII or attempted DUII. At any rate, we conclude that

the record is insufficient to establish that the stop was justified by reasonable

suspicion of either DUII or attempted DUII.

Cite as 365 Or 659 (2019) 667

experience, that defendant had taken a substantial step

toward driving or was about to do so.

We disagree. Although “officers reasonably may

draw inferences about human behavior from their training

and experience,” Miglavs, 337 Or at 13, an officer’s “hunch”

based on training and experience is, by itself, insufficient

to form a basis for reasonable suspicion, see State v. Valdez,

277 Or 621, 628, 561 P2d 1006 (1977) (“[I]nstinct and expe-

rience cannot * * * form the entire basis for ‘reasonable sus-

picion.’ ”). An officer’s belief is objectively reasonable only if it

is based on the individual’s own conduct. Miglavs, 337 Or at

12. Here, Crino’s knowledge about defendant’s conduct was

minimal: Although Crino testified that he saw defendant

standing “near” a parked car, Crino did not know that the

car belonged to defendant and did not see defendant at the

door of the car or holding keys. That knowledge was insuf-

ficient to give rise to reasonable suspicion that, at the time

that defendant was standing “near” the car in the parking

lot, defendant had taken a substantial step toward driving.

It also was insufficient to give rise to reasonable suspicion

that, at the time that defendant stood at the back door of

the restaurant, he was about to commit DUII. By that time,

defendant had walked away from the parking lot where the

car was located.6 Perhaps defendant intended to return to

the parking lot and drive away while Crino watched, but,

absent some indication that defendant was about to do so,

Crino’s suspicion that defendant was about to commit DUII

was not objectively reasonable. We conclude that Crino’s

stop of defendant was not supported by reasonable suspi-

cion of attempted DUII or DUII, and we turn to the more

difficult question of whether Crino’s order to effectuate that

stop—his order that defendant turn and be handcuffed—

was, nevertheless, a “lawful order” under ORS 162.247(1)(b).

B. Crino’s order was not a “lawful order.”

As discussed, under ORS 162.247(1)(b), a “lawful

order” is an order that is authorized by, and is not contrary

6

Crino testified that he had reasonable suspicion that a crime was “either

occurring or about to occur with [defendant] lurking around the parking lot. Also,

potentially going to drive out of the parking lot if that was indeed his vehicle.”

668 State v. Kreis

to, substantive law. No party argues that the legislature

intended any other meaning of that term; thus, our inquiry

is not one of statutory construction, but is one of substantive

law: Was Crino’s order that defendant turn and be hand-

cuffed an order that was authorized by, and not contrary to,

substantive law? To answer that question, a court must con-

sider the authority granted, and the restrictions imposed,

by the substantive law, and that is now our task. In under-

taking it, we engage, as the legislature intended, in a judi-

cial analysis of the substantive law to determine whether

Crino’s order was “lawful.”7

The state contends that officers have broad author-

ity to issue orders and that an order is contrary to substan-

tive law only if it directs a person to commit a crime or to

refrain from statutorily or constitutionally protected activ-

ity. Crino’s order, the state argues, was not of that ilk: Crino

did not direct defendant to commit a crime, and defendant

had no statutory or constitutional right to ball his fists, take

a bladed stance, and place Crino in apprehension of injury.

Consequently, the state argues, Crino’s order was not con-

trary to substantive law. Alternatively, the state argues

that Crino’s order was independently justified by his officer-

safety concerns.8

We agree with the state’s opening proposition that

peace officers have broad authority to investigate crime and

7

For that reason, we differ with the dissent in the importance of Court

of Appeals cases decided prior to the amendment of ORS 162.247 in 1997 and

the related legislative history. The legislature left the determination of what is

authorized by, and not contrary to, substantive law to the courts, and the court

is the final decision-maker on those state issues. Witnesses and legislators may

have thought that officer safety was an important consideration in the enactment

of the amendments to ORS 162.247, and we do not deny that it was, but the legis-

lature decided to permit prosecution only for refusing to obey orders that do not

violate the substantive law, leaving that judicial determination to the courts.

8

The state also argues that when an order is “lawful by its terms,” it does

not become unlawful merely because it is given during an unlawful seizure. The

state argues that the text, context, and legislative history of ORS 162.247 demon-

strate that an order’s lawfulness does not turn on an encounter’s lawfulness. We

do not address those arguments because, for purposes of this opinion, we accept

them. Therefore, we agree with the dissent that, for purposes of ORS 162.247,

a court must look at an order independently of the validity of the initial police

confrontation. See State v. Kreis, 365 Or 659, 683, 451 P3d 954 (2019) (Balmer, J.,

dissenting).

Cite as 365 Or 659 (2019) 669

protect the public.9 However, we disagree with the state’s

argument that Crino’s order directing defendant to turn

and be handcuffed was not contrary to substantive law.

First, we reject the idea that an order is contrary to sub-

stantive law only when an officer directs a person to com-

mit a crime or refrain from protected activity. In Illig-Renn,

we considered the constitutionality of the interfering stat-

ute, and we explained that the word “lawful” removes from

the statute’s sweep “any refusal to follow an order that is

inconsistent with the substantive law, including constitu-

tional provisions.” 341 Or at 238. The constitutional provi-

sions at issue in Illig-Renn were provisions guaranteeing

the right of free expression and assembly. Id. However, as

the state acknowledges, the same principle applies when an

individual fails to follow an order that is inconsistent with

other constitutional provisions, including the provision that

protects the right to be free from unreasonable search and

seizure. Accordingly, an order that is not consistent with

Article I, section 9, or that is issued in violation of that pro-

vision, is not a “lawful order” for purposes of ORS 162.247

(1)(b).10

Second, when we analyze Crino’s order to turn and

be handcuffed, we conclude that it is not consistent with

Article I, section 9. In conducting that analysis, we consider

the state’s two distinct arguments: (1) that, when considered

independently, and without regard to the legality of Crino’s

initial seizure, Crino’s order to turn and be handcuffed was

“lawful by its terms” because it was not an order to refrain

from constitutionally protected activity; and (2) that, even if

that order was not “lawful by its terms,” it was constitution-

ally justified by the officer-safety doctrine.

9

For example, in addition to having authority to stop persons to investigate

criminal activity and arrest persons upon probable cause, peace officers have

authority to perform “any lawful acts that are inherent in the duty of the peace

officer to serve and protect the public.” ORS 133.033(2).

10

We do not read the Court of Appeals cases cited by the dissent or the

legislative history of ORS 162.247 as suggesting that the term “lawful order”

means something different. See, e.g., State v Wilson, 283 Or App 823, 828, 390

P3d 1114, rev den, 361 Or 801 (2017) (citing Ausmus for the proposition that an

order is lawful if it is “authorized by, and is not contrary to, substantive law”);

State v. Navickas, 271 Or App 447, 450, 351 P3d 801, rev den, 358 Or 248 (2015)

(same).

670 State v. Kreis

The state’s first argument, that Crino’s order was

“lawful by its terms,” is an argument that does not rely on

the officer-safety doctrine. It is an argument that defen-

dant did not have a “right” to engage in the conduct that

he did, and therefore, that Crino’s order was lawful. The

problem with that argument is that Article I, section 9,

limits the actions of law enforcement; it does not proscribe

or prohibit the actions of the public. Article I, section 9,

grants Oregonians a right to be free from unreasonable

searches and seizures, and an officer violates that right if

the officer seizes an individual without constitutional jus-

tification. Holdorf, 355 Or at 823-24. When an officer seizes

an individual, we do not examine whether the individual

had the “right” to engage in particular activity; instead,

we examine whether the officer had a constitutional jus-

tification for the seizure. When an officer has reasonable

suspicion that a person has engaged or is about to engage

in activity that constitutes a crime, an officer may seize

that person to investigate further, not because the per-

son does not have a “right” to engage in that activity, but

because the officer’s interference with that individual’s lib-

erty interest is constitutionally justified. Here, the state

contends that Crino’s order that defendant turn and be

handcuffed did not violate substantive law because defen-

dant had no “right” to ball his fists, take a bladed stance,

or place Crino in apprehension of injury; the state does

not contend that Crino issued that order because Crino

had a reasonable suspicion that defendant had violated or

was about to violate Oregon law. The state does not con-

tend, for instance, that when defendant balled his fists,

took a bladed stance, and placed Crino in apprehension

of injury, Crino had reasonable suspicion that defendant’s

conduct amounted to disorderly conduct (ORS 166.025),

menacing (ORS 163.190), or harassment (ORS 166.065).11

If Crino had had reasonable suspicion that defendant was

about to commit those or other crimes, then we would

11

Defendant does not seem to dispute that, if we were to hold that the officer-

safety doctrine provided constitutional justification for Crino’s order, then the

requirements of that doctrine would be met—that Crino in fact had reasonable

officer-safety concerns. We do not hold that such concerns could not give rise to

reasonable suspicion of criminal activity; we note only that the state does not so

argue here.

Cite as 365 Or 659 (2019) 671

agree that Crino’s seizure would have been constitution-

ally justified and “lawful” for purposes of ORS 162.247

(1)(b).12 But we do not agree with the state that Crino’s

order was “lawful by its terms” because defendant had no

“right” to engage in the conduct that he did. An order is

also not “contrary to substantive law” only when it is an

order to refrain from constitutionally protected activity.

An order is also contrary to substantive law when it inter-

feres with an individual’s liberty interest to be free from

unreasonable searches and seizures. Here, defendant had

a liberty interest with which Crino could not interfere

absent constitutional justification.

We therefore proceed to the state’s alternative argu-

ment that Crino’s officer-safety concerns provided the con-

stitutional justification for his order. We begin our analysis

by recognizing that reasonable officer-safety concerns can,

indeed, justify an otherwise unconstitutional search or sei-

zure. Bates, 304 Or at 524. In Bates, officers had lawfully

stopped the defendant for a traffic violation, and, after they

noticed a bag underneath his feet, they grew concerned that

the defendant posed a threat to their safety. Id. at 521-22.

When the officers asked the defendant to pull the bag into

sight, he reached down and put his hand near the bag but

would not pull it into view. Id. Concerned for their safety,

the officers ordered the defendant out of the car and subse-

quently searched him and the bag, discovering evidence of

criminal activity. Id. Although we did not uphold the offi-

cers’ actions in that case, we did explain that Article I, sec-

tion 9, permits officers to take reasonable steps to protect

their safety and the safety of others during the course of

lawful encounters:

12

We note, however, that when the issue is not the lawfulness of a police

order under ORS 162.247(1)(b), but, instead, whether an unconstitutional act

requires suppression of evidence, the analysis may be different. This case does

not involve a question of whether evidence should be suppressed following Crino’s

unconstitutional stop, thus, the state does not need to show that Crino’s order

was not “tainted” by that stop. See State v. Unger, 356 Or 59, 88-91, 333 P3d 1009

(2014) (when determining whether evidence must be suppressed because it was

obtained in violation of the defendant’s constitutional rights, the state must show

that the evidence was not “tainted” by that violation). As we explain, we differ

with the state as to whether the officer’s order was “lawful by its terms.” Under

Article I, section 9, an order that constitutes a seizure is “lawful by its terms”

only if it is constitutionally justified.

672 State v. Kreis

“Article I, section 9, of the Oregon Constitution does not

forbid an officer to take reasonable steps to protect [him-or-

herself] or others if, during the course of a lawful encounter

with a citizen, the officer develops a reasonable suspicion,

based upon specific and articulable facts, that the citizen

might pose an immediate threat of serious physical injury

to the officer or others then present.”

Id. at 524 (emphasis added).

Since Bates, we have continued to uphold searches

and seizures that have occurred during investigatory stops

but without reasonable suspicion that those who were

seized had committed or were about to commit a crime. For

instance, in State v. Morgan, 348 Or 283, 285, 230 P3d 928

(2010), officers stopped a car based on reasonable suspicion

of the driver’s criminal activity, but searched the defendant,

a passenger, based on safety concerns. And, in Miglavs, 337

Or at 3, officers were investigating a curfew violation by

the defendant’s acquaintance but conducted a pat down

of the defendant for safety reasons. We also have applied

Bates to justify searches and seizures occurring while offi-

cers were engaged in other activities. For example, in State

v. Cocke, 334 Or 1, 9, 45 P3d 109 (2002), the officer-safety

doctrine applied to a search of the defendant’s room con-

ducted incident to the arrest of another tenant. In State

v. Foster, 347 Or 1, 3, 217 P3d 168 (2009), we upheld an

officer’s entry onto the defendant’s property while serving a

restraining order. And, most recently, in State v. Madden,

363 Or 703, 705, 427 P3d 157 (2018), we held that a sei-

zure of an individual without reasonable suspicion could

be justified under the officer-safety doctrine if the purpose

is to safely execute a search warrant and the seizure is a

reasonable response to an officer’s safety concerns. In each

of those cases, the searches or seizures at issue were con-

stitutionally justified by officer-safety concerns alone; the

officers did not have another constitutional basis for their

actions.13

13

Thus, to the extent that defendant argues that an order that effects a sei-

zure can only be a lawful order when the officer has reasonable suspicion that

the individual seized is engaged in criminal activity, defendant is incorrect. At

least to effectuate other lawful activity, officer-safety concerns can supply that

justification.

Cite as 365 Or 659 (2019) 673

Defendant argues, however, that there is a limit to

the justification that the officer-safety doctrine can provide:

As articulated in Bates, the officer-safety doctrine applies

only “during the course of a lawful encounter.” 304 Or at

524. In defendant’s view, the officer-safety doctrine does not

provide a constitutional basis for a search or seizure when

an officer is not engaged in lawful activity, and officer-safety

concerns cannot turn an otherwise unlawful order into a

“lawful order” for purposes of ORS 162.247(1)(b).

The state responds that Bates describes only one

of many circumstances in which officer-safety concerns can

justify police action and points us to State v. Guggenmos,

350 Or 243, 253 P3d 1042 (2011), for a broader statement of

the officer-safety doctrine. The principle that emerges from

that case, the state contends, is that if officers are engaged

in good-faith police work in a place they are entitled to be,

they may issue “lawful orders” to protect themselves.

In Guggenmos, officers went to a residence to conduct

a “knock and talk” and learn if residents with outstanding

warrants were present. Id. at 246. The officers were invited

inside and given permission to search. Id. During the

search, and contrary to one resident’s statement concerning

the number of people in the house, an officer, Mogle, saw two

men—one of whom was the defendant—run down the stairs

toward a back door. Id. Mogle ran after the men and yelled

at them to stop, but the men did not heed Mogle’s command.

Id. After an officer, who was waiting outside, stopped the

men, Mogle went back inside to “clear” the house to make

sure there were not any other persons present. Id. at 246-47.

During that search, Mogle discovered drugs sitting in plain

view in the defendant’s bedroom. Id. at 248.

This court ultimately determined that the officers

did not have reasonable suspicion of an immediate threat

to their safety sufficient to justify the search. Id. at 260.

On the way to that conclusion, however, we explained that

a protective sweep, though not its own exception to the war-

rant requirement, may be justified under the “court’s stan-

dards for an officer safety search.” Id. at 251. In response to

the defendant’s argument that the protective sweep was not

permissible because it was not made incident to an arrest,

674 State v. Kreis

we explained that the defendant read the cases on which he

relied too narrowly:

“Bates confirmed that the necessity of taking protective

measures can arise ‘during the course of a lawful encoun-

ter with a citizen * * *.’ [State v. Cocke, 334 Or 1, 9, 45 P3d

109 (2002)], stated that the officer-safety justification

applies to the actions of police officers responding to an

immediate threat when they are in a place where they are

entitled to be. But, as Bates and Cocke indicated, an officer’s

lawful encounter with a citizen may give rise to a reason-

able suspicion that the citizen poses an immediate threat

of serious physical injury to the officer or others regardless

of whether the officer is conducting an arrest. That kind of

encounter may occur when the police are lawfully present

in a private residence or an occupied building, even if they

have no intention of arresting anyone.”

Id. at 254 (emphases added; omission in original).

The state reads that passage from Guggenmos to

identify two circumstances in which officers are authorized

to take reasonable officer-safety precautions under Bates:

(1) during lawful encounters with citizens when there is a

reasonable suspicion of an immediate threat to safety; and

(2) when officers are in a place “where they are entitled to

be” and are “responding to an immediate threat.” The state

contends that the second circumstance encompasses situ-

ations “when an initial encounter might straddle the line

between a lawful and unlawful seizure.” The second circum-

stance, the state asserts, deserves protection under Bates,

as the purpose of the officer-safety doctrine is to allow offi-

cers to take reasonable precautions to minimize risks that

could arise during all encounters with citizens.

We do not read Guggenmos as an intentional expan-

sion of the officer-safety doctrine. Immediately after its ini-

tial description of the officers in Cocke as being where they

were entitled to be, the court, in Guggenmos, describes those

officers as being engaged in a “lawful encounter.” 350 Or

at 254. In all of the cases in which we have applied Bates,

we have noted or assumed that the officers were engaged

in lawful police activity when their safety concerns arose,

and we do not understand Guggenmos as a deliberate

departure from the officer-safety doctrine as articulated in

Cite as 365 Or 659 (2019) 675

Bates.14 That does not mean, however, that we are foreclosed

from extending the officer-safety doctrine beyond the cir-

cumstances described in Bates and concluding, as the state

urges, that all reasonable orders issued to protect officer

safety are constitutionally justified.

The state argues that the purpose of the officer-

safety doctrine is to keep officers safe during all encoun-

ters, and that that purpose is served if it permits officers to

take reasonable safety precautions against all threats that

arise, including those that arise during encounters later

determined to be unlawful. The state asks that we interpret

Article I, section 9, to permit reasonable orders to protect

officer safety even when issued to effectuate an unlawful

stop.

14

We also do not read the other cases cited by the state as extending the

officer-safety doctrine beyond lawful encounters. In Miglavs, the lawfulness of the

encounter between the officer and defendant’s acquaintance was not specifically

at issue; however, the officer engaged the defendant and his acquaintance for the

same reason, which was to investigate curfew violations. This court explained

that the lawfulness of the encounter determined whether Bates applied, and that

the defendant conceded that his encounter with the officer was lawful. Miglavs,

337 Or at 12 (noting that the defendant “concedes that [the officer] was engaged

in a lawful contact with [the] defendant”).

The state cites our recent decision in Madden as “observing the likelihood,

but not deciding, that [the] initial seizure [of the defendant] was lawful before

applying the officer-safety rule.” See Madden, 363 Or at 724 n 16 (noting that the

detective who seized defendant for safety reasons also suspected that defendant

was engaged in criminal activity). Although it is true this court did not analyze

whether the detective in Madden could have seized the defendant based on rea-

sonable suspicion of criminal activity, we did not need to because the officer was

engaged in other lawful police activity—the execution of a search warrant at a

house where the defendant happened to be sitting in the driveway.

The same is true of Foster. In Foster, the officers were engaged in serving a

restraining order, and one of the officers went beyond the front door of the res-

idence to a side window and looked inside. 347 Or at 4. The state contends that

Foster observed the possibility, but did not decide, that the “initial entry onto cur-

tilage was not fully justified by existing privileges before applying [the] officer-

safety rule.” See id. at 9 n 5 (noting that, in addition to the privilege of implied

consent to go to the front door, the privilege to execute civil process, coupled with

the sheriff’s duty under Oregon law to serve court orders, could have applied

to the situation, though it would not necessarily “permit the server to roam at

will across the property”). As in Madden, this court did not need to analyze

whether a privilege permitted the officer to take a position beneath the window

on the defendant’s property before determining whether the officer-safety doc-

trine applied; the lawful activity—which was not challenged in that case—was

serving a restraining order. The question was whether the officer-safety doctrine

permitted police action—positioning beneath a window—taken to effectuate that

activity.

676 State v. Kreis

We recognize that police officers work in dangerous

settings and encounter daily threats that may require offi-

cers to take safety precautions that we are not entitled to

uncharitably second-guess. Bates, 304 Or at 524. But we do

not agree that those dangers provide an independent consti-

tutional justification for all orders issued to counter them.

It is important to remain cognizant that Article I, section 9,

grants the people a “liberty interest to be free from unrea-

sonable searches and seizures.” Holdorf, 355 Or at 822-23.

Officers are precluded from arresting an individual unless

they have a warrant, the restraint is justified by an excep-

tion to the warrant requirement, or, for investigatory stops

that fall short of an arrest, the stop is justified by reason-

able suspicion that an individual has committed or is about

to commit a crime. See State v. Fair, 353 Or 588, 608-09, 302

P3d 417 (2013) (an arrest based on probable cause requires

warrant or exception to warrant requirement, and “tempo-

rary detention of criminal suspects” requires reasonable

suspicion). The officer-safety doctrine is not a general excep-

tion to the warrant requirement; it is a rule of necessity

that enables officers to take reasonable measures to carry

out lawful police activity. See Bates, 304 Or at 524 (“The

officer should be permitted to take every reasonable pre-

caution to safeguard his life in the process of making the

arrest.” (Internal citation and quotation omitted.)); see also

ORS 131.615(5) (when making a stop, an officer “may use

the degree of force reasonably necessary to make the stop

and ensure the safety of the peace officer”).

When officers have reasonable suspicion of crim-

inal activity, they may temporarily seize an individual to

conduct further investigation and issue orders reasonably

necessary to do so, including orders reasonably necessary to

protect their safety.15 See, e.g., Bates, 304 Or at 524 (permit-

ting officers to take safety precautions during lawful stop).

15

In this case we do not decide whether an officer’s safety concerns could

justify a seizure if those concerns arose during the course of a noncoercive con-

versation. Although not raised here, it is important to remember that, even if

permitted, action taken to protect officer safety must be a reasonably necessary

response to the perceived threat. See State v. Foster, 347 Or 1, 12, 217 P3d 168

(2009) (“The [officer-safety] doctrine generally requires that an officer’s response

to officer safety concerns be reasonable in light of the specifically articulated and

reasonably perceived circumstances.”).

Cite as 365 Or 659 (2019) 677

But, when, as here, an officer has made an initial, unlawful

seizure, and there is no independent constitutional justifica-

tion for further restraint, the officer-safety doctrine does not

permit the officer to impose continued, and even more strin-

gent, restraint to effectuate that unlawful seizure.16 If we

were to conclude that the officer-safety doctrine grants such

authority, we would be expanding the doctrine beyond its

purpose and diminishing the rights guaranteed by Article I,

section 9. We are unwilling to do so.

In reaching that conclusion, we understand that

there may be circumstances in which officers are not certain

that an encounter is lawful; an encounter may, as the state

suggests, “straddle the line.” For instance, an officer may

not be certain that an order to stop is justified by reason-

able suspicion or that an order to disperse is issued in accor-

dance with the guarantees of free speech and assembly.

That uncertainty is understandable, but it is not material

for purposes of ORS 162.247(1)(b). As we explained in Illig-

Renn, by including the word “lawful” in that statute, the

legislature “remov[ed] from the statute’s sweep any refusal

to follow an order that is inconsistent with the substantive

law, including constitutional provisions.” 341 Or at 238. If

an officer issues an order that is inconsistent with Article I,

section 9, an individual who refuses to obey that order does

not violate ORS 162.247(1)(b).

In summary, ORS 162.247(1)(b) makes it a crime

for an individual to disobey a “lawful order.” An order that

restrains an individual’s liberty in violation of Article I, sec-

tion 9, is not a “lawful order” for purposes of that statute. In

this case, because Crino did not have reasonable suspicion

16

Contrary to the dissent’s suggestion, we do not overturn the principle that,

for purposes of ORS 162.247(1)(b), the lawfulness of an order is to be judged inde-

pendently of the validity of the initial police confrontation. We hold only that

when there is no constitutional justification for an initial seizure, such as reason-

able suspicion of criminal activity, and an officer is unconstitutionally restrain-

ing an individual without an independent constitutional basis for doing so, the

officer-safety doctrine and Article I, section 9, do not permit the officer to impose

continued, even more stringent, restraint to effectuate the seizure. We do not

arrive at that conclusion to provide a “remedy” for the initial constitutional vio-

lation, or to deter police misconduct. We arrive at that conclusion because, in our

view, Article I, section 9, does not permit that continued, more stringent, inter-

ference with an individual’s liberty interest.

678 State v. Kreis

that defendant had committed or was about to commit

DUII or attempted DUII, his seizure of defendant violated

Article I, section 9. Crino’s subsequent order that defendant

turn and be handcuffed also was not constitutionally justi-

fied and was therefore inconsistent with that constitutional

provision. We therefore conclude that Crino’s order was not

a “lawful order” for purposes of ORS 162.247(1)(b), and that

the trial court erred in denying defendant’s motion for judg-

ment of acquittal.

The decision of the Court of Appeals is reversed.

The judgment of the Beaverton Municipal Court is reversed,

and the case is remanded to that court for further proceed-

ings consistent with this opinion.

BALMER, J., dissenting.

For more than 35 years, Court of Appeals caselaw

has held that “the lawfulness of an order based on officer

safety is to be judged independently of the validity of the

initial police-citizen confrontation.” State v. Kreis, 294 Or

App 554, 559, 432 P3d 245 (2018) (citing cases). That rule

requires citizens to follow police orders that are based on

a reasonable, fact-based concern for the safety of police or

others—even if a court later determines that the police

lacked reasonable suspicion to detain the person at the time

of the initial citizen contact. The salutary effect of the rule is

to help de-escalate police-citizen confrontations; protect offi-

cer and public safety; and allow police to perform community

care-taking functions, control crowds at public events when

behavior turns dangerous, and investigate often ambiguous

domestic violence situations.

The majority today states that it agrees that “the

lawfulness of an order is to be judged independently of the

validity of the initial police confrontation.” 365 Or at 676

n 15. However, the majority holds—contrary to those cases

with which it purports to agree—that “when there is no con-

stitutional justification for an initial seizure, such as rea-

sonable suspicion of criminal activity, and an officer [seizes]

an individual without an independent constitutional basis

for doing so, the officer-safety doctrine and Article I, sec-

tion 9, do not permit the officer to impose continued, even

Cite as 365 Or 659 (2019) 679

more stringent, restraint to effectuate the seizure.”1 Id. In so

holding, the majority today muddies the standards required

of police officers under Article I, section 9. Because, in my

view, the majority’s holding is not required by our cases or

by any reasonable interpretation of ORS 162.247(1)(b), and

is not necessary to protect a defendant’s Article I, section 9,

rights, I respectfully dissent.

I first outline the Court of Appeals caselaw with

which the majority theoretically agrees but with which its

ultimate holding conflicts. Then, because this case turns—

or should turn—on the interpretation of ORS 162.247(1)(b),

I consider the text and legislative history of that statute

which, in my view, supports the result below. Finally, I dis-

cuss the Article I, section 9, overlay that appears to drive

the majority’s decision and explain why the majority errs in

its holding today.

THE COURT OF APPEALS CASES

FROM GAFFNEY TO KREIS

The Court of Appeals decisions are persuasive in

their own right and also are important because that court’s

binding interpretation of the term “lawful order” when the

interference statute was amended in 1997 tells us how the

legislature understood the term at that time—and what

they intended the term to mean in ORS 162.247(1)(b).

The Court of Appeals first encountered a related

issue in State v. Gaffney, 36 Or App 105, 583 P2d 582 (1978),

rev den, 285 Or 195 (1979), where the trial court had dis-

missed harassment and criminal mischief charges against

the defendant for fighting with police and damaging a police

car after he disobeyed police orders to stop and officers

attempted to pat him down for weapons. The trial court had

1

A “seizure” for purposes of Article I, section 9, occurs “when either (1) a

police officer intentionally and significantly interferes with the person’s freedom

of movement; or (2) the person believes, in an objectively reasonable manner, that

his or her liberty of movement has been so restricted.” State v. Rodgers/Kirkeby,

347 Or 610, 621-22, 227 P3d 695 (2010). A “stop” is “a temporary restraint of a

person’s liberty for the purpose of criminal investigation,” and qualifies as a “sei-

zure” under Article I, section 9. Id. at 620. I use the terms “stop” and “seizure”

interchangeably in this opinion. The majority describes the police interaction

with defendant, prior to the officer-safety-based order at issue here, as a “sei-

zure.” 365 Or at 677. I agree with that characterization.

680 State v. Kreis

held that, because the police lacked probable cause for the

initial stop, Article I, section 9, required the suppression of

evidence of all actions by the defendant following the stop,

including evidence that would support his prosecution for

crimes against the officers. The Court of Appeals reversed,

holding that, although the exclusionary rule would prohibit

the use of evidence obtained based on the unlawful stop,

“[t]he purposes underlying the exclusionary rule would not

be well served by the exclusion of evidence of independent

crimes directed at officers who illegally stop, frisk, arrest

or search. Moreover, the results of such an extension of the

exclusionary rule would be intolerable. A person who cor-

rectly felt that he had been illegally stopped, for example,

could respond with unlimited violence and under an exclu-

sionary rule be immunized from criminal responsibility for

any action taken after the stop. That cannot be an appro-

priate rule.”

36 Or App at 108-09 (citing cases from Illinois, North

Carolina, and New York).2

The Court of Appeals applied that rule in numerous

later cases, including State v. Rodinsky, 60 Or App 193, 653

P2d 551 (1982), where the defendant, who was the subject

of a traffic stop, disobeyed a police order to remain in her

car (and 12 requests to return to her car, after she left it

and approached the police car) and was loud and abusive

towards police. She was charged with failing to obey a police

officer under former ORS 487.100(1) (1981), which made it an

offense to “fail[ ] to comply with any lawful order, signal or

direction of a police officer * * *.” The Court of Appeals held

that, even if the traffic stop was unlawful (as the defendant

had argued), “that did not immunize her from the conse-

quences of her subsequent conduct and did not deprive the

officer of the authority to respond to those actions by appro-

priate orders.” 60 Or App at 196.

As I discuss in greater detail below, the statute mak-

ing it an offense to interfere with a peace officer by refusing

2

I do not necessarily agree with everything that the Court of Appeals said

in Gaffney, in part because it relied on “stop and frisk” statutes no longer on the

books. I quote it because it is the basis for the Court of Appeals’ more recent cases

on this issue and because it contains some seeds of wisdom.

Cite as 365 Or 659 (2019) 681

to obey a “lawful order of [a] peace officer,” ORS 162.247(1)(b),

has been amended a number of times, but the critical term

“lawful order” was also in the version of the statute applied

in Rodinsky and in all subsequent versions. And the Court of

Appeals has continued to apply its earlier caselaw. In State

v. Neill, 216 Or App 499, 173 P3d 1262 (2007), rev den, 344

Or 671 (2008), the defendant was charged under that stat-

ute when police were sent to a scene of domestic violence fol-

lowing a 9-1-1 call and found a bloody victim, damaged prop-

erty, and other evidence of fighting. Although the blood and

damaged property suggested that a crime had recently been

committed, the defendant asserted there was no valid basis

for the police to enter her apartment and that all evidence

resulting from that unlawful entry should be suppressed,

including evidence that she had refused to obey multiple

officer orders, several of which were based on officer-safety

concerns. The Court of Appeals extended earlier decisions

such as Gaffney, which had involved crimes against police

officers following an unlawful search or seizure, to situa-

tions where the defendant had threatened officer safety.

Neill, 216 Or App at 507. Because the defendant’s conduct

“reasonably led the officers to be concerned that defendant

posed a legitimate threat to their safety and their ability to

maintain control of a potentially dangerous situation,” the

defendant was required to obey their reasonable orders:

“That the police may have acted unlawfully in initiating

the search did not free defendant to interfere with reason-

able directions by the police designed to reduce the risk

of violence and maintain safety once the search had com-

menced. As in Gaffney and its progeny, to hold otherwise

would be intolerable and would not serve to advance the

purposes underlying the exclusionary rule.”

Id. at 508.

Moreover, and directly relevant to this case, the

court in Neill also rejected the defendant’s argument that

her motion for judgment of acquittal should have been

granted because the officer’s order was not “lawful” under

ORS 162.247(1)(b). Id. at 508-09. The court reasoned that

the same rationale for admitting evidence of the defendant’s

failure to comply with reasonable officer-safety-based orders

indicated that those orders were lawful: “The lawfulness

682 State v. Kreis

of the order disobeyed is to be judged independently of the

validity of the initial police-citizen confrontation.” Id. at 509

(quoting Rodinsky, 60 Or App at 196). The court also noted

that “the order itself cannot be said to be unlawful for the

purpose of precluding prosecution for failure to obey it.”

Neill, 216 Or App at 508.

Another variation on the same theme was State

v. Bistrika, 261 Or App 710, 322 P3d 583, rev den, 356 Or

397 (2014), cert den, ___ US ___ (2015), where police officers

had lawfully entered private property to provide emergency

aid under ORS 133.033, but the emergency had dissipated,

and the officers no longer had a lawful basis to remain on

the property. Id. at 714. The court thus assumed that the

officers were in violation of defendant’s Article I, section 9,

rights when they gave orders to defendant and other family

members in response to reasonable threats to the officers’

safety. Id. at 714-16. But the court nevertheless held that the

trial court correctly had denied defendant’s motion for judg-

ment of acquittal on the charge of interfering with a peace

officer: Even if the defendant’s Article I, section 9, rights had

been violated, whether the order was a “lawful order” for

purposes of ORS 162.247(1)(b) was a separate question, and

“the deputies’ orders were ‘reasonable in light of [the threat

to officer safety], and defendant’s refusal to obey the orders

added to the threat.’ ” Id. at 718 (quoting Neill, 216 Or App at

508).3

The Court of Appeals reviewed those cases again in

State v. Wilson, 283 Or App 823, 828, 390 P3d 1114 (2017),

and addressed further arguments about the “lawfulness” of

officer-safety-based orders:

“ ‘An order is “lawful” if it is authorized by, and is not

contrary to, substantive law.’ State v. Navickas, 271 Or

App 447, 450, 351 P3d 801, rev den, 358 Or 248 (2015) (cit-

ing State v. Ausmus, 336 Or 493, 504, 85 P3d 864 (2004)).

‘When examining whether an order is “lawful,” * * * we

look at whether the order at issue was lawful on its face.’

Id. at 451. Of critical importance here, ‘the “lawfulness of

the order disobeyed is to be judged independently of the

3

The court ultimately reversed and remanded the interfering convictions on

the separate ground of instructional error. Bistrika, 261 Or App at 730.

Cite as 365 Or 659 (2019) 683

validity of the initial police-citizen confrontation.” ’ [cita-

tion omitted].”

That line of Court of Appeals decisions shows a

careful distinction between the lawfulness of an initial

stop or search and the lawfulness of a later police directive

or order that is motivated by officer or public safety. And

that distinction makes perfect sense, for reasons the Court

of Appeals has explained repeatedly since Gaffney. The

unlawful search or seizure of a citizen or unlawful entry

into a home violates the citizen’s (or noncitizen’s) right under

Article I, section 9, to be free from unreasonable searches

or seizures. To redress such constitutional violations, and

to deter police conduct that violates those rights, we sup-

press evidence obtained from such searches, unless it comes

within some exception to the warrant requirement. But once

a search or seizure has occurred—whether it is later judged

to be lawful or unlawful—the safety of law enforcement

personnel, potential victims, bystanders, and defendants

requires that those in the vicinity follow reasonable officer

orders based on the officers’ reasonable concerns for their

safety or the safety of others. The majority’s approach chips

away at that longstanding aspect of Oregon law.

THE MEANING OF “LAWFUL ORDER”

IN THE INTERFERENCE STATUTE

The Court of Appeals cases are consistent with the

text of ORS 162.247(1)(b), which provides that a person com-

mits the offense of interfering with a peace officer, when,

“knowing that another person is a peace officer,” he or she

“[r]efuses to obey a lawful order by the peace officer.” Nothing

in that text suggests that an order is “lawful” for purposes of

the offense of interfering with a peace officer only if the ini-

tial seizure was justified by reasonable suspicion or probable

cause. The question the statute asks is whether the order

was lawful, not whether the initial encounter was lawful,

not lawful, or somewhere in the ambiguous area between

the two that we see, for example, in this case or in respond-

ing to a domestic disturbance 9-1-1 call, as in Neill.4 The

4

Here, of course, as the majority notes, defendant does not dispute the rea-

sonableness of the officer-safety concerns, or the reasonableness of the order as a

response to those concerns. 365 Or at 663-64.

684 State v. Kreis

statute itself thus does not state or imply that the lawful-

ness of the initial seizure or search has any bearing on the

lawfulness of a later police order based on later conduct of

the defendant. The legislature knows how to write statutes

that do turn on whether the initial stop was lawful. See ORS

807.570(1)(b)(A) (requiring person to obey officer request if

the person is “lawfully stopped or detained”). ORS 162.247

(1)(b) is not such a statute.

The Court of Appeals cases are also relevant because

they inform our understanding of what the legislature

intended when it adopted the current version of the interfer-

ing with a police officer statute. That statute was amended

in 1997 because other laws prohibited resisting arrest, but

did not prevent interference with police-citizen encounters

short of arrest. See Tape Recording, Senate Committee on

Crimes and Corrections, SB 423, Feb 19, 1997, Tape 13, Side A

(comments of Rep Floyd Prozanski). When one police officer

testified, in response to a question about how he understood

the term “lawful order,” he gave as an example of an inter-

action short of arrest,

“a traffic stop where you might be performing field-sobriety

tests and somebody who’s in the car is getting out and com-

ing back or wanting to become involved. * * * [T]here’s noth-

ing legally that they’re doing wrong other than I might be

able to detain them on an officer-safety basis because that’s

a threat to my ability to do my job. * * * But with this law,

if that person did cross the line and didn’t listen to rea-

son, didn’t listen to commands to get back into the vehicle,

[he could warn the person that he was about to violate the

interference law.]”

Tape Recording, House Committee on Judiciary, Subcom-

mittee on Criminal Law, SB 423, June 5, 1997, Tape 140,

Side A (statement of Albany Police Officer Eric Carter).

Neither Carter, nor any other witness, nor any member of

the subcommittee, suggested that the lawfulness of an offi-

cer’s order would turn on whether the initial stop was valid

or not.5

5

The legislative history is replete with comments by witnesses and legisla-

tors as to the importance to officer safety of a statute penalizing the refusal to

obey orders based on that concern. See Tape Recording, Senate Committee on

Crimes and Corrections, SB 423, Feb 19, 1997, Tape 13, Side A; Tape 14, Side A

Cite as 365 Or 659 (2019) 685

As significant, at the time the 1997 amendments

were being considered, the Court of Appeals had several

decades of cases, discussed above, holding that whether an

officer’s order was “lawful” was a question independent of

whether the initial stop was justified. The court had con-

sistently held that if an order made after the initial stop

or search was justified by the individual’s conduct after the

stop or after the entry into the home—such as a potential

threat to an officer or others—that was a “lawful order,”

whether the initial stop or entry was lawful or not. That

definitive caselaw as to the meaning of a “lawful order”

in the statute prohibiting interfering with a peace officer

by refusing to obey such an order was a vital part of the

statutory context of the 1997 amendments to ORS 162.247

(1)(b). A.G. v. Guitron, 351 Or 465, 471, 268 P3d 589 (2011)

(explaining that “existing case law forms a part of a statute’s

context” and that this court’s analysis begins “with a review

of the law as it existed” at the time a statute was enacted).

It strongly suggests that the legislature understood those

kinds of orders to be “lawful” and intended the refusal to

obey them to be prohibited by ORS 162.247(1)(b).

THE OFFICER-SAFETY-BASED ORDER HERE

WAS A “LAWFUL ORDER”

Rather than probe the text and legislative history

of the interference statute, or explain why it departs from

the Court of Appeals’ cases, the majority relies instead on

State v. Ausmus, 336 Or 493, 503-04, 85 P3d 864 (2003),

where we discussed the term “lawful order” in a different

statute, and State v. Illig-Renn, 341 Or 228, 338, 142 P3d

62 (2006), where we rejected a facial challenge to the inter-

ference statute on the ground that it was unconstitutionally

vague and overbroad.

The actual holdings in those cases, as opposed to

the dicta, are not particularly relevant to the majority’s

argument. In Ausmus, a unanimous court had little trouble

(comments of Rep Floyd Prozanski). The state argues that the legislative history

demonstrates that the statute also was intended to require compliance with other

types of police orders, even if they are not justified by a reasonable officer-safety

concern. I express no view regarding that argument because it is not necessary

to the resolution of this case.

686 State v. Kreis

holding unconstitutional on its face a statute that made

it a crime to “congregate[ ] with other persons in a public

place” and to “refuse[ ] to comply with a lawful order of the

police to disperse,” if the persons had congregated “with

intent to cause public inconvenience, annoyance or alarm,

or recklessly creating a risk thereof.” Former ORS 166.025

(1)(e) (2001). The court found that the statute was uncon-

stitutionally overbroad and vague because at least some of

the conduct it prohibited was protected by free speech and

assembly rights, and the court could find no way to narrowly

construe the statute to make it constitutional. That prob-

lem is not present here because of the very different stat-

ute and the recognized officer-safety basis for the officer’s

order. Moreover, this case is not a facial challenge to the

interference statute, nor does defendant argue that the stat-

ute is unconstitutionally overbroad or vague—arguments

that have more salience in free expression and similar set-

tings. See Wayne R. LaFave, 1 Search and Seizure § 1.13(a),

553-54 n 20 (5th ed 2012) (suggesting greater justification

may be necessary for failure to obey orders violating First

Amendment rights than other officer orders). In Illig-Renn,

on the other hand, this court rejected defendants’ challenge

to the very statute at issue in this case, ORS 162.247(1)(b),

holding that it was not facially overbroad or vague in viola-

tion of constitutional protections for speech and assembly.

341 Or at 338. Defendant raises no free speech or assembly

argument here.

The majority instead relies on various statements in

those cases about what constitutes a “lawful order,” but the

cases are distinguishable. In Ausmus, we looked to the dic-

tionary to define that term in the statute creating the crime

of disorderly conduct and came up with the unsurprising

statement that a “lawful order” was one “authorized by, and

not contrary to, substantive law.” Ausmus, 336 Or at 504.

But here the order was “authorized,” because it was a reason-

able response to a legitimate concern for officer safety based

on defendant’s aggressive and threatening conduct after he

was stopped. As this court recognized in Ausmus, various

statutes authorize police to give orders as part of their ordi-

nary investigative, community-caretaking, and protective

policing functions. 336 Or at 505-06. And we explicitly held

Cite as 365 Or 659 (2019) 687

in State v. Bates that an officer may take reasonable actions

to protect himself or herself (or others) during an encounter

with a citizen, if the officer develops “a reasonable suspicion,

based upon specific and articulable facts, that the citizen

might pose an immediate threat of serious physical injury

to the officer or to others present.” 304 Or 519, 524, 747 P2d

991 (1987). No such officer-safety rationale was advanced as

a basis for the orders in Ausmus or Illig-Renn being “lawful

orders.” In contrast, the order here was “lawful” in the sense

of being “authorized by law” based on Bates, as well as other

statutes articulating the permitted scope of ordinary police

work. And, as noted, defendant does not dispute that the offi-

cers who gave the order had reasonable suspicion to believe

that he posed a threat of serious bodily harm to them.

Although I think the Court of Appeals’ approach

has much to recommend it, it also is true that the majority

has helpfully reframed the issue that was argued by the par-

ties and decided by the Court of Appeals. The majority does

not focus on whether the initial police-citizen encounter was

lawful, but instead announces a rule based on whether the

later police order independently violated defendant’s consti-

tutional rights. See 365 Or at 674-77, 675 n 14. The majority

agrees that even if the initial encounter results in a seizure

that later is determined to be unlawful (as here), the law-

fulness of an order in response to defendant’s post-seizure

conduct will not necessarily turn on the legal validity of the

earlier seizure, but rather on whether the order “is incon-

sistent with Article I, section 9.” 365 Or at 677. Thus, the

majority purports to preserve the concept that the lawful-

ness of a police order “is to be judged independently of the

validity of the initial police citizen confrontation.” Kreis, 294

Or App at 559.6 However, the majority goes on to say that

where an order that constitutes a seizure is based only on

6

The majority’s reframing thus suggests that it would conclude that an

officer-safety based order that was not “contrary to substantive law” is a “law-

ful order” for purposes of ORS 162.247(1)(b), even if the order was given in the

context of an unlawful search or seizure. Thus, an officer-safety-based order to

“drop the gun” presumably would be lawful, even if the initial stop was not. I

certainly agree with the majority on that point. But many cases, like this one and

the Court of Appeals cases discussed in the text, will involve police orders that

may interfere with a person’s freedom of movement and thus raise the Article I,

section 9, issue upon which the majority and I disagree.

688 State v. Kreis

officer-safety concerns—and lacks “an independent consti-

tutional basis,” such as reasonable suspicion of criminal

activity—then the inquiry does depend on whether there

was a “constitutional justification for [the] initial seizure.”

365 Or at 676 n 15.

The majority proceeds to determine that the order

here was not a “lawful order” because it was contrary to sub-

stantive law. The majority asserts that the order to defen-

dant to turn around and put his hands behind his back and

be handcuffed was contrary to substantive law, because

“defendant had a liberty interest with which [the officer]

could not interfere absent constitutional justification,” 365

Or at 671, and the officer lacked that justification. I dis-

agree. First, the majority is too quick to dismiss the state’s

characterization of defendant’s argument: that he claimed

the right “to ball his fists, take a bladed stance, or place

Crino in apprehension of injury.’ ” Id. at 670. In fact, that

was the crux of defendant’s argument. This is not a case

where the defendant chose to engage in passive resistance—

inactive, nonviolent noncooperation in response to a police

order, which we have held cannot constitute interference

under ORS 162.247(1)(b). See State v. McNally, 361 Or 314,

392 P3d 721 (2017). Rather, after the initial stop, defendant

intentionally engaged in further aggressive and threaten-

ing conduct to which the officers reasonably responded with

the order at issue here. Such orders, until today, have been

considered “lawful orders” under the interference statute,

based on Bates. In my view, the officer-safety basis for the

order was sufficient justification under Article I, section 9.

Second, the majority asserts that the order necessar-

ily was unlawful because it “is inconsistent with” Article I,

section 9, as an unjustified seizure of defendant. 365 Or at

677. The flaw in that argument, however, is that, at the time

of the order, defendant already had been seized. As presented

to us, this case involves a seizure by police (based on what

they incorrectly believed to be probable cause) and a later

police order, based on valid officer-safety concerns, to defen-

dant to turn around so that he could be handcuffed. But

the order did not result in defendant’s seizure by police. The

seizure already had occurred, and the order followed the

seizure. Moreover, it was defendant’s post-seizure conduct

Cite as 365 Or 659 (2019) 689

that led to the order. Whether that order was lawful, as

the state argues, or unlawful, as the majority has now con-

cluded, there is no doubt that, as a factual and legal matter,

a person in defendant’s circumstances is seized only once. I

see no particular substance in the majority’s statement, not

argued by defendant, that the order was a new violation of

his liberty interests because it “effectuated” the preexisting

and continuing seizure of defendant.

The majority appears to agree that, if the initial

stop is lawful—that is, based on reasonable suspicion that

the person in question has committed or is about to com-

mit a crime—a later officer-safety-based order also would be

lawful and, if not obeyed, could be the basis for an interfer-

ence charge. And, of course, if the initial stop is lawful and

police obtain evidence of the crime for which the defendant

was stopped (and perhaps other crimes), that evidence ordi-

narily can be used in subsequent prosecutions. On the other

hand, if the initial stop is unlawful, the person’s Article I,

section 9, rights are violated, and evidence of the crime for

which the person was stopped will be suppressed. The per-

son’s constitutional rights will be vindicated, and there will

be a deterrent effect on improper police conduct.

But it is a separate issue whether the person

already stopped must obey a reasonable order based on rea-

sonable concern for the safety of a police officer or another

person in the absence of reasonable suspicion that the per-

son is engaged in criminal activity. I see no legal reason

why that person should not be required to obey such an

order, whether or not the initial stop was lawful. Such a

requirement would not violate the person’s Article I, sec-

tion 9, rights. As discussed above, if the initial stop was

unlawful, the person already has been unconstitutionally

seized, and the remedy that we have long imposed for that

violation—suppression of evidence of the crime for which

the person was stopped—will be the result. There is no

need, in terms of deterrence of police misconduct or vindi-

cation of the constitutional rights of a person who is already

seized, to hold that an order based on a reasonable phys-

ical threat is “unlawful” and to permit the subject of the

order to ignore it without consequence. Such a result also

is contrary to the intent of the legislature in enacting ORS

690 State v. Kreis

162.247(1)(b) and its understanding of how the term “lawful

order” would be interpreted by the courts.

It probably should not have to be said, but “imme-

diate threat[s] of serious physical injury to the officer or to

others present,” Bates, 304 Or at 524, are as likely to arise

during stops that a court may later determine to be unlawful

as during stops that are found to be lawful. Allowing police

to give reasonable orders in response to such threats helps

prevent confrontations from escalating, protects the safety

of officers and the public, and promotes the nonviolent res-

olution of potentially dangerous situations. The threats are

just as real whether the initial basis for the stop was lawful

or not. The majority needlessly undermines an important

tool for dealing with those threats.

I respectfully dissent.

Garrett, J., joins in this dissent.